Employment Bulletin - July 2006

In this month’s bulletin, we look at some important recent cases which have hit the headlines dealing with:

• whether BNP members are protected by race legislation;
• direct disability discrimination; and
• when a TUPE transfer is regarded as having taken place.

We also examine the Government’s proposals to increase holiday entitlement and the recent challenge to the Age Discrimination Regulations.

BNP MEMBER NOT RACIALLY DISCRIMINATED AGAINST

The Court of Appeal has overturned the Employment Appeal Tribunal’s (‘EAT) decision in the case of Redfearn v Serco that a BNP member dismissed by a transport company, for reasons associated with his membership of the BNP, had been racially discriminated against.

The EAT, in deciding that Mr Redfearn’s dismissal amounted to race discrimination, followed a line of authorities which extended the idea of “racial grounds” to cover employees who had been dismissed for refusing to carry out an unlawful act, such as discriminatory instructions.

By extending the scope of the RRA in such a way, the EAT opened up the possibility of claims being brought by employees dismissed for racial harassment. In overturning the EAT’s decision, the Court of Appeal made the point that such reasoning would turn the purpose of the legislation on its head and that ‘racial grounds’ applies to racially discriminatory acts. Simply because racial considerations have been taken into account does not mean the dismissal is necessarily on “racial grounds”.

Guidance for Employers:

• Ensure you have clear policies in place to deal with discrimination issues and follow those policies where issues arise;
• If considering dismissing an employee due to their political views/membership, the employee will not have a discrimination claim but will have unfair dismissal protection if employed for over a year;
• Ensure that your reasons for such a dismissal are substantial – consider the actual and potential effect on your business, clients or customers and staff. If deciding to dismiss make sure you follow a fair procedure (which includes the statutory procedures).

DIRECT DISABILITY DISCRIMINATION

Employees (and others covered by the Disability Discrimination Act 1995) have been able to claim direct discrimination since December 2004. Direct discrimination is where an employee is treated less favourable because of the disability itself, rather than a reason relating to it (such as ill health absence, or a physical aid). An employer cannot justify direct discrimination.

In the case of Tudor v Spen Corner Veterinary Centre Ltd, a veterinary nursing assistant and receptionist, suffered a stroke in May 2005 which resulted in blindness. T was informed in June 2005 that it was not known whether she would regain her sight. In July 2005, T was dismissed. Following this T appealed against her dismissal and raised a grievance. T’s employer responded by asking T to complete a questionnaire in respect of the duties T performed prior to the stroke and her ability to continue to perform them.

T later brought a claim for direct disability discrimination. The Tribunal was of the view that an employee off sick with a broken leg who did not know when he or she would be able to return would not have been treated the same way and that the employer had made generalised and stereotypical assumptions about T and her disability.

Guidance for Employers:

• Claims for direct disability discrimination are rare but are on the increase.
• Employers should ensure that when dealing with disability issues, appropriate consultation takes place with the employee and that medical advice is obtained.
• Employers should never rely on assumptions about an individual’s disability.
• Managers should be made aware of disability issues and recruit on the basis of skill and abilities and treat all employees the same.
• In addition, employers need to bear in mind their duty to make reasonable adjustments for disabled employees which may entail treating the disabled employee more favourably.

TUPE – WHEN DOES A TRANSFER TAKE PLACE?

In the case of Celtec v Astley the courts have been considering when a transfer takes place. In this case there was a transfer of responsibility for training young people from the Department of Education to Training and Enterprise Councils (TECs). This process took several years. The employees of the Department of Education were officially seconded to the TECs and later became employees of the TECs.

The House of Lords has held that the transfer took place when the TECs opened which was the legal date of the transfer. As such, even though the employees were regarded as seconded employees, their employment transferred on that date and not when they officially became employees of the TECs a few years later. This resulted in the employees having a longer period of continuous service for the purposes of redundancy payments.

Practical Tips:

• Be mindful that the TUPE Regulations are likely to apply when there is a change in service provider or a business transfer from one undertaking to another.
• The TUPE transfer will take place on a specific date from which time the transferee (the new employer) will become responsible for the employees of the transferor.
• Employers should be aware of their employment responsibilities and, where possible, obtain as much information in advance of the transfer about the employees transferring across.
• A due diligence exercise should be undertaken to ensure that the employees’ contracts fulfil the legal requirements.

HOLIDAY ENTITLEMENT

The Government has proposed increasing the statutory entitlement, currently four weeks holiday per year, to reflect the number of bank/public holidays (eight in total). This means that workers would be entitled to 5.6 weeks’ holiday per year, subject to a maximum of 28 days.

The intention is not necessarily give all workers the right to take the specific public holidays off work, so they could still be required to work on those days. Workers would be entitled to take the equivalent amount of time off work at another time, as they would with their existing entitlement. This issue is currently under consultation.

Possible Consequences:

• This, if introduced, will have a big impact on those employers who limit holiday entitlement to the statutory four weeks.
• There will be an obvious increase in holiday pay costs (an extra eight days per worker) and also holiday cover which will need to be budgeted for.
• There may be an indirect pressure on employers whose employees are already contractually entitled to take off bank holidays, to increase the holiday entitlement above the statutory minimum of 28 days.

AGE DISCRIMINATION CHALLENGE

Heyday, an organisation backed by Age Concern for people planning retirement has applied for Judicial Review of the Employment Equality (Age) Discrimination Regulations 2006 on the basis that they do not properly implement the EU Directive.

Heyday is objecting to employers having the right to require employees to retire at or over 65 and believes mandatory retirement ages should be abolished.

We’ll keep you posted on any developments….

FURTHER INFORMATION

If you would like further information on any of these issues or any other employment matter, please contact a member of the Employment Unit.

The Employment Training Unit provides bespoke training on all employment issues in a practical and comprehensive format. Again, please contact a member of the unit for further details.

If you would like further information on our Employment Unit or to discuss topics covered in this newsletter, please do not hesitate to contact Kevin McKernan, Head of our Employment Unit, or any other member of the team on 0191 233 9700.

The Employment Training Unit provides bespoke training on all employment issues in a practical and comprehensive format. Again, please contact a member of the unit for further details.

« Back to Newsletter archives